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Samuels v. Schultz

United States District Court, W.D. New York

March 30, 2017

RONALD SAMUELS, Plaintiff,
v.
DARREL SCHULTZ, ANTHONY DIPONZIO, and BERNIE GARCIA, Rochester Police Officers, Defendants.

          DECISION & ORDER

          JONATHAN W. FELDMAN UNITED STATES MAGISTRATE JUDGE.

         Procedural History

         Pro se plaintiff Ronald Samuels brings this 42 U.S.C. § 1983 action against Rochester police officers Darrel Schuitz, Anthony DiPonzio, and Bernie Garcia (collectively "defendants" or "the officers"). See Complaint (Docket # 1). Plaintiff claims that the officers used excessive force when arresting him on May 2, 2008, in violation of the Fourth and Eighth Amendments. Id.

         Currently pending before the Court is defendants' motion for summary judgment, filed on June 20, 2016. Docket # 53.[1] Plaintiff filed a response with the Court on September 9, 2016. Docket # 56. Defendants did not file a reply, and the motion was thereafter deemed submitted on paper. For the reasons that follow, defendants' motion is denied in part and granted iii part.

         Discussion

         Failure to Comply with Local Rules: Before turning to the merits of this motion, the Court must address the failure of defense counsel to comply with the requirements of our Local Rules of Civil Procedure and Second Circuit case law. Rule 56 (b) of the Local Rules of Civil Procedure for the Western District of Hew York provides in relevant part that

[a] ny party moving for summary judgment against a pro se litigant shall file and serve, with the motion papers a "Notice to Pro Se Litigant Regarding Rule 56 Motion for Summary Judgment" in the form provided by the Court. Failure to file and serve the form notice shall result in denial of the motion, without prejudice to proper renewal.

L.R. Civ. P. 56(b). Judges of this Court remind counsel of this requirement by repeating it in all of our standard scheduling orders involving pro se litigants. indeed/ our scheduling orders provide counsel with a copy of the required notice that must be attached to any dispositive motion. See Docket # 18 at 4. The Second Circuit has held that "[i]n the absence of such notice or a clear understanding by the pro se litigant of the consequences of failing to comply with Rule 56, vacatur of the summary judgment [against a pro se party] is virtually automatic." Irby v. New York City Transit Auth., 262 F.3d 412, 414 (2d Cir. 2001).

         Defense counsel failed to attach the required notice here. There are good reasons for the rule requiring that pro se litigants be apprised of the potential for their case to be dismissed without a trial if they do not submit affidavits or admissible evidence raising triable issues of fact. It is not "obvious to a layman that when his opponent files a motion for summary judgment supported by affidavits he must file his own affidavits contradicting his opponent's if he wants to preserve factual issues for trial." Graham v. Lewinski, 848 F.2d 342, 344 (2d Gir. 1988) (quoting Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir. 1982)) .

         The meager state of the current record unfortunately pays tribute to why strict abidance to the local rule is so important to the efficient administration of justice. Plaintiff's response to the defendants' motion does not comply with Rules 7 (a) (3) and 56 (b) of the Local Rules of Civil Procedure, a fact that might have been held against plaintiff had the defendants attached the required notice to their moving papers. Moreover, the fact that plaintiff filed a response does not change the analysis. "Where the proper notice has not been given, the mere fact that the pro se litigant has made some response to the motion for summary judgment is not dispositive where neither his response nor other parts of the record reveal that he understood the nature of the summary judgment process." Vital v. Interfaith Med. Ctr., 168 F.3d 615, 621 (2d Cir. 1999).

         Plaintiff's response to the motion for summary judgment is haphazard, disorganized and inadequate. But absent service of the required notice for pro se litigants, the Court lacks confidence that plaintiff understands the nature of a motion for summary judgment or the consequences of an inadequate response. Nevertheless, despite the failure to comply with the local rules, the Court has decided to address the merits of defendants' motion for summary judgment instead of simply denying the motion without prejudice to renew upon compliance with Local Rule 56'(b) . I choose to address the merits because first, this case has been pending for so long and second, with one exception, the record is sufficient for the Court to determine that summary judgment on plaintiff's excessive force claim is not appropriate..

         Fourth Amendment Claim: The analysis required for determination of a summary judgment motion in a case alleging excessive force during an arrest is well established.

In order to establish that the use of force to effect an arrest was unreasonable and therefore a violation of the Fourth Amendment, plaintiffs must establish that the government interests at stake were outweighed by "the nature and quality of the intrusion on [plaintiffs'] Fourth Amendment interests." Graham v. Connor, 490 U.S. 386, 396 (1989) . In other words, the factfinder must determine whether, in light of the totality of the circumstances faced by the arresting officer, the amount of force used was objectively reasonable at the time. Id. at 397. The inquiry therefore "requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Id. at 396. Given the fact-specific nature of the inquiry, granting summary judgment against a ...

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